Wednesday, December 1, 2010

American Diplos Got It Right on Honduras

Whoever’s behind the strategy of what WikiLeaks documents to drop, and when, has a keen sense of marketing. The information released thus far has provided nothing short of a fascinating, if sometimes downright trashy, tour through the nuts and bolts of American foreign policy practice. While very serious matters of international relations have been revealed so far, much of the dump seems designed to appeal to the Jersey Shore dimension of our imagination—which leaders have the most scandalous personal lives, which embassies generate the most consistently cutting, clever and humiliating analysis of foreign politicians, and the like.

Beyond all the sensationalist gossip that has come to dominate the headlines and is undoubtedly causing headaches within the White House, however, a number of leaked cables detail not only the professionalism and good judgment of American foreign service staff abroad, but offer real cliff-hangers that leave readers licking their chops for more.

One such document is a brilliant cable sent to Washington by the US Embassy in Tegucigalpa, Honduras. The cable is dated July 24, 2009, right in the thick of the constitutional crisis that led to then-President Manuel Zelaya’s ouster by the Honduran military. As I argued repeatedly throughout the summer of last year, far from the leftist hero many—who had never followed Honduran politics before the coup—made him out to be, Zelaya is a despicable opportunist whose political loyalties extend only so far as himself. Still, while Zelaya undoubtedly pushed the envelope by seeking to reform the country’s constitution with no clear legal mandate, his removal by an even more contemptible cast of goons marked nothing less the lowest moment of Honduran politics in over a generation.

The embassy wire more or less confirms this analysis, acknowledging that all sides behaved badly. But what makes this a standout piece of diplomatic intelligence is its insistence on getting to the bottom of the legal dimensions of the situation—conclusions upon which to chart a responsible American foreign policy moving forward.

The cable lays out at length and with great care the various legal arguments put forth by coup supporters, including but not limited to accusations that Zelaya had failed to present the Congress with a budget, proposed illegal constitutional amendments of unreformable articles, illegally dismissed the head of the armed forces, and defied the judgment of an appeals court that demanded an end to Zelaya’s constitutional reform efforts. All of which may have been true. Only problem was, as the cable points out, “there was never any formal, public weighing of the evidence nor any semblance of due process.”

What follows is a breathlessly efficient rejection of the arguments put forward to justify Zelaya’s removal from office on the grounds that they are, well, nonsense and canards.

Article 239, which coup supporters began citing after the fact to justify Zelaya's removal (it is nowhere mentioned in the voluminous judicial dossier against Zelaya), states that any official proposing to reform the constitutional prohibition against reelection of the president shall immediately cease to carry out their functions and be ineligible to hold public office for 10 years. Coup defenders have asserted that Zelaya therefore automatically ceased to be President when he proposed a constituent assembly to rewrite the Constitution...

The Article 239 argument is flawed on multiple grounds:

-- Although it was widely assumed that Zelaya's reason for seeking to convoke a constituent assembly was to amend the constitution to allow for reelection, we are not aware that he ever actually stated so publicly;

-- Article 239 does not stipulate who determines whether it has been violated or how, but it is reasonable to assume that it does not abrogate other guarantees of due process and the presumption of innocence;

-- Article 94 states that no penalty shall be imposed without the accused having been heard and found guilty in a competent court;

-- Many other Honduran officials, including presidents, going back to the first elected government under the 1982 Constitution, have proposed allowing presidential reelection, and they were never deemed to have been automatically removed from their positions as a result.

And here’s the real kicker:

It further warrants mention that Micheletti himself should be forced to resign following the logic of the 239 argument, since as President of Congress he considered legislation to have a fourth ballot box ("cuarta urna") at the November elections to seek voter approval for a constituent assembly to rewrite the constitution. Any member of Congress who discussed the proposal should also be required to resign, and National Party presidential candidate Pepe Lobo, who endorsed the idea, should be ineligible to hold public office for 10 years.

But the cable’s obliteration of arguments in defense of the coup gets better still.

Regardless of the merits of Zelaya's alleged constitutional violations, it is clear from even a cursory reading that his removal by military means was illegal, and even the most zealous of coup defenders have been unable to make convincing arguments to bridge the intellectual gulf between "Zelaya broke the law" to "therefore, he was packed off to Costa Rica by the military without a trial."

-- Although coup supporters allege the court issued an arrest warrant for Zelaya for disobeying its order to desist from the opinion poll, the warrant, made public days later, was for him to be arrested and brought before the competent authority, not removed from the county;

-- Even if the court had ordered Zelaya to be removed from the country, that order would have been unconstitutional; Article 81 states that all Hondurans have the right to remain in the national territory, subject to certain narrow exceptions spelled out in Article 187, which may be invoked only by the President of the Republic with the agreement of the Council of Ministers; Article 102 states that no Honduran may be expatriated;

-- The armed forces have no/no competency to execute judicial orders; originally, Article 272 said the armed forces had the responsibility to "maintain peace, public order and the 'dominion' of the constitution," but that language was excised in 1998; under the current text, only the police are authorized to uphold the law and execute court orders (Art. 293);

-- Accounts of Zelaya's abduction by the military indicate he was never legally "served" with a warrant; the soldiers forced their way in by shooting out the locks and essentially kidnapped the President.

The Armed Forces' ranking legal advisor, Col. Herberth Bayardo Inestroza, acknowledged in an interview published in the Honduran press July 5 that the Honduran Armed Forces had broken the law in removing Zelaya from the country. That same day it was reported that the Public Ministry was investigating the actions of the Armed Forces in arresting and deporting Zelaya June 28 and that the Supreme Court had asked the Armed Forces to explain the circumstances that motivated his forcible exile.

As reported reftel, the legal adviser to the Supreme Court told Poloff that at least some justices on the Court consider Zelaya's arrest and deportation by the military to have been illegal.

In sum? Zelaya may indeed have been the dangerous, self-interested jackass many suspected him to be all along, but the coup constituted nothing less than a naked, illegal power grab by the conservative Honduran elite.

And yet despite this incisive analysis, the United States hemmed and hawed throughout the summer as the crisis intensified, innocent people were murdered, and Honduran politics seemingly returned to the bad old days of death squads and dictators.

The biggest as yet unanswered mystery in all this is why Washington retreated from its initial, admirable condemnation of the coup in its immediate aftermath, to a wish-washy acceptance by the fall of last year that the preservation of Honduran democracy necessitated toleration of its own egregious violation. It’s not as if the State Department, the White House, and the CIA—all of whom received the embassy cable—were unaware of the facts on the ground. And still, as Robert Naiman argues, even a month after this cable was sent

The State Department, in its public pronouncements, pretended that the events of June 28 –in particular, "who did what to whom" and the constitutionality of these actions—were murky and needed further study by State Department lawyers, despite the fact that the State Department's top lawyer, Harold Koh, knew exactly "who did what to whom" and that these actions were unconstitutional at least one month earlier. The State Department, to justify its delay in carrying out US law, invented a legal distinction between a "coup" and a "military coup," claiming that the State Department's lawyers had to determine whether a "military coup" took place, because only that determination would meet the legal threshold for the aid cutoff.

So what happened? Was the changing face of American policy on the crisis the result of Republican congressional pressure on the Obama White House, as some claim? Or did the State Department sacrifice its commitment to democracy on the altar of larger, regional stability considerations, as some others have suggested? Let’s hope that more documents emerge that shed light on these questions, and fill in the timeline gaps of perhaps the most important event in recent US-Latin American relations.